KEI MUA I TE AROARO O TE RŌPŪ WHAKAMANA I TE TIRITI O WAITANGI BEFORE THE WAITANGI TRIBUNAL WAI 2575

IN THE MATTER OF the Treaty of Waitangi Act 1975

AND

IN THE MATTER OF the Health Services and Outcomes Kaupapa Inquiry

MEMORANDUM OF COUNSEL FOR THE CROWN WITH UPDATE ON MEETINGS WITH CLAIMANT COUNSEL

29 April 2020

CROWN LAW TE TARI TURE O TE KARAUNA

Pouaka Poutāpeta TE WHANGANUI-Ā-TARA

Waea Waea Whakaahua

Whakapā mai:

PO Box 2858 WELLINGTON 6140 Tel: 04 472 1719 Fax: 04 473 3482

Contacts:

Craig Linkhorn – Barrister instructed / Geoffrey Melvin Craig.Linkhon@cliftonchambers.co.nz / Geoffrey.Melvin@crownlaw.govt.nz

Wai 2575, #3.2.210

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MAY IT PLEASE THE TRIBUNAL

1. On 9 April 2020, the Crown filed its initial statement of response to the

claims proposed to be consolidated and aggregated for hearing in the first

phase of stage two of this kaupapa inquiry – claims by or on behalf of

Māori with lived experience of disability.1 On 15 April, the Crown filed a

memorandum of counsel on how inquiry participants might approach the

interlocutory steps and timetabling for this phase of stage two.2 In these

documents, the Crown identified that a number of the claims made do not

yet disclose clearly material facts supporting the allegations made or are

insufficiently particularised. The Crown also raised some issues about the

most effective scope of this phase of the inquiry as well as some issues

about the jurisdiction of the Tribunal to inquire into some of the claims.

2. The Crown set out in the 15 April memorandum that it intended to meet

with claimant counsel over two weeks to discuss the pleadings issues raised,

noting that the Tribunal may have to rule on these issues if they could not

be resolved.

3. The Tribunal encouraged this approach and directed that these

conversations also be used to discuss the scope and jurisdictional issues

raised. The Tribunal directed the Crown, as an interim step, to update the

Tribunal on the outcome of the discussions by midday on 29 April 2020.3

4. Crown lawyers have had constructive discussions with a majority of

claimant counsel, collectively representing approximately 25 of the claims

proposed to be consolidated or aggregated in this phase of stage two of the

inquiry. A report on these meetings is set out below.

5. To date the Crown legal team has not been successful in arranging a

meeting with remaining claimant counsel. Counsel for the Crown will keep

trying to arrange this, recognising that many people’s work and life

commitments are very disrupted at this time in light of the Covid-19

pandemic.

1 Wai 2575, #1.3.002. 2 Wai 2575, #3.2.208. 3 Wai 2575, #2.6.23 at [1]

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Scope and jurisdictional issues

6. For the most part, the scope issues arising turn on resolving how to

organise this phase of the health services and outcomes kaupapa inquiry

efficiently and effectively. There is a risk of a domino effect into areas

beyond health services and outcomes. Lived experience of disability goes

beyond the disability support services provided by the health sector. Many

of the other areas over which claims might be made will themselves be the

subject of future inquiries – kaupapa or non-kaupapa inquiries.

7. In discussions to date with claimant counsel, the dimensions of these scope

issues have been identified to some extent but remain to be teased out

further in ongoing work and discussions. The objective is to identify

practical boundaries for topics that should be within this phase of stage two

and other topics that might be inquired into later in this kaupapa inquiry or

in other Tribunal inquiries.

8. No agreement has been reached to date on jurisdictional issues arising.

Further time can be productively spent continuing to explore the following

topics with affected claimant counsel in order to refine the jurisdictional

issues the Tribunal might be called to rule on in due course. At this point

these have been identified as:

8.1 “By or on behalf of” issues – for example, the extent to which

claims within scope about ACC are about matters undertaken by

the Crown or on behalf of the Crown;

8.2 Settled historical claim issues – whether a claimant’s historical

claims are already settled; and

8.3 Historical claims filed after the cut-off date for historical claims.

Pleadings issues

9. Counsel for the Crown have met with claimant counsel from Annette Sykes

& Co Ltd,4 Bennion Law,5 barristers Karen Feint QC and Erin James,6

4 Representing Wai 2713. 5 Representing Wai 2143. 6 Representing Wai 2943.

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barrister Siaosi Tofi, Rainey Collins,7 Right Law,8 Smail Legal Ltd,9 Tamaki

Legal,10 Te Mata Law,11 Tukau Law,12 Wackrow Williams & Davies,13 Whāia

Legal14 and Woodward Law Offices.15 Counsel for the Crown have also

corresponded with barrister Barney Tupara.16

10. The majority of claimant counsel with whom we have met have indicated

that they wish to take time to provide further detail in their claims

documents after the Crown’s initial statement of response. In some cases,

this may be done formally, through seeking to further amend statements of

claim; in others cases where there are fewer gaps in setting out material facts

in the allegations made, this may occur informally by providing the Crown

with additional details in order to enable the Crown to prepare a response

and for the next steps to occur of identifying live issues and arranging for

discovery of relevant information about those matters.

11. Other claimant counsel are still considering their clients’ position on

whether to produce more detailed allegations.

12. The following counsel have agreed to work further with the Crown on

providing more detailed claims: Annette Sykes & Co Ltd, barrister Barney

Tupara, Right Law, Tamaki Legal, Te Mata Law, Wackrow Williams &

Davies and Woodward Law Offices. The Crown will continue to work with

these counsel over the next four weeks to progress this. The Crown has

already received some further claim details from Right Law and Annette

Sykes and Co Ltd. The Crown considers this work might allow it to

develop agreed statements of fact with some claimants, which would further

refine the issues for inquiry.

13. The Crown is waiting to hear back from the following groups about

whether they will provide more detailed pleadings: Tukau Law, Rainey 7 Representing Wai 2109. 8 Representing the following Wai claims: 884, 1460, 1941, 2179 9 Representing Wai 2910. 10 Representing the following Wai claims: 2894, 762, 2005, 2743, 2863, 2869, 2893. 11 Representing the following Wai claims: 2672, 2624. 12 Representing the following Wai claims: 682, 1544, 1677. 13 Representing the following Wai claims: 1176, 1781, 2734, 2736 14 Representing Wai 2912. 15 Representing Wai 2644. 16 Representing the following Wai claims: 2006, 2682

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Collins, barristers Siaosi Tofi and Karen Feint QC and Erin James. It is

expected that responses will be received by 15 May with further discussion

to follow.

14. The Crown understands from Bennion Law that the Ngāti Turi claimants

are not practically able to provide more detailed pleadings at this time, in

part because of challenges associated with working with the Ngāti Turi

claimant community. The Crown will continue to work with Bennion Law

to develop a suggested approach to the Tribunal’s inquiry into the Ngāti

Turi claims.

15. The discussions with claimant counsel have been very useful. As part of

these discussions some ideas are emerging about claimant readiness and

how to progress inquiry into more than 40 registered Wai claims in a

practical way. Some sequencing is likely required, allowing groups who are

ready to move earlier to hearings than others who require more time. Issues

of readiness also arise because of the disruption experienced resulting from

the Covid-19 pandemic.

16. The Crown intends to continue to work directly with co-ordinating claimant

counsel and with each group of claimant counsel on these issues and

proposes a further report back to the Tribunal on progress on Friday

29 May 2020.

29 April 2020

C Linkhorn / G Melvin / A Lawson Counsel for the Crown

TO: The Registrar, Waitangi Tribunal AND TO: Claimant Counsel